1621682 (Refugee)

Case [2021] AATA 310

1621682 (Refugee) [2021] AATA 310 (13 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621682

COUNTRY OF REFERENCE:                   Liberia

MEMBER:Jane Marquard

DATE:13 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 January 2021 at 8:43am

CATCHWORDS
REFUGEE – Protection Visa – Liberia – fears forced initiation as Poro society leader – threats of death at refusal – Christian beliefs – credibility issues – applications for permanent residency shortly after arrival – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

BACKGROUND TO CLAIM FOR PROTECTION

  1. The applicant is [an age]-year-old man from Liberia.

  2. He first arrived in Australia [in] November 2012 on a Temporary Business Entry Visa (Subclass UC 456). He was then granted a tourist visa on 13 December 2012 and applied for a partner visa on 6 March 2013. His application for a partner visa was refused by the Department and on 4 August 2015 the refusal was affirmed by the Migration Review Tribunal.

  3. The applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 21 August 2015. A delegate of the Department for Immigration and Border Protection (the Department) refused to grant the visa on 21 November 2016.

  4. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

  5. The applicant claims to fear harm because he has been selected to be a Zoe, a traditional practitioner of the secret Poro Society[1], and that because he refuses to take up the position, he will be killed. The Tribunal must determine whether the applicant meets the refugee criteria or the complementary protection criteria set out in the legislation. While the Tribunal has significant sympathy for the applicant’s position, as he has lived in Australia since 2012 and clearly has a loving wife, child and stepchildren in Australia, the Tribunal is not satisfied that he meets the criteria for this visa.

    [1] United Nations, United Nations Mission in Liberia, An assessment of human rights issues emanating from traditional practices in Liberia, December 2015

    CRITERIA FOR A PROTECTION VISA

  6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that…

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AGLC
1621682 (Refugee) [2021] AATA 310
Case
[2021] AATA 310
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from Liberia. The applicant claimed to fear forced initiation into the Poro Society and threats of death if he refused, citing his Christian beliefs. The Tribunal was required to determine whether the applicant met the criteria for a protection visa, either under the refugee convention or complementary protection provisions.

The court was tasked with assessing the applicant's claims of persecution and significant harm. Specifically, it needed to determine if there were substantial grounds for believing that the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of removal to Liberia. This involved evaluating the credibility of the applicant's evidence regarding his alleged Poro Society obligations and the potential consequences of refusal.

The Tribunal considered evidence provided to the Department and the Tribunal, as well as independent country information. It applied the principles that an applicant must satisfy the Tribunal that all statutory elements for protection obligations are made out, and that a decision-maker is not required to make the applicant's case for them. The Tribunal found that the applicant had not satisfied it that he was of interest to the Poro Society, and therefore concluded that he did not meet the refugee or complementary protection criteria. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In coming to a decision, the Tribunal has taken into consideration the evidence produced to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Liberia.Summary of evidence before the Department The applicant made claims in his application forms, supporting documents and at an interview with the Department on 27 July 2016. A summary of his evidence follows. The applicant stated that he was born on [date] in [Town 1], Liberia. He is from the Kpelle ethnic group and is a Christian. He said that he is from ‘[Town 1]’. He said that his father was a businessman and leader of the Poro Society. His family was financially secure and happy. He was one of [number] children. His father is deceased, but his mother and sister are residing in Liberia, as are [children], born [in years]. He also had a stepson who passed away. He is married in Australia and has a daughter born in [year], and [step-children]. He completed high school in October [year]. He studied [course] at [University 1] from [year] to [year]. While studying, he participated in the 2005 and 2011 elections for the opposition party. He was involved in campaigns and rallies. He was harassed by the government, but it was ‘not life threatening’. Before coming to Australia, he worked as [an Occupation 1] at [a workplace] with representative, [Mr A]. He travelled to Australia as part of his official duties upon an invitation from the Liberian community in [State 1]. While in Australia he met his wife[and] got married and later lodged a partner visa application. He and his wife have a daughter, and he has three stepchildren. [In] July 2015 he was informed by his sister that his father had passed away from illness. On 4 August 2015 he sent money to his sister for the funeral. He said that as he also had his visa application refused around this time, he planned to return to Liberia on 28 August 2015 for the funeral. However, on 20 August 2015 he received an email from his friend, [Mr B] who attended a meeting with the applicant’s family members and the Poro Society. He was informed that, according to the doctrine, if a leader dies, the first son of the leader should ascend to the position as head of the Society. The applicant was informed that there were plans for him to be initiated to the Poro Society position [in] August 2015. He was told that he would be initiated two weeks after arrival and if he refused, he would be killed through ritual practice. His sister said that there was nothing they could do as his father had agreed to it before he died. His father was a pagan and had also been forced to be chief when he was aged [age]. The applicant’s uncle is a Poro member. However, the applicant’s mother and siblings are Christian even though his father was a Poro, and prior to that, a pagan. The applicant’s father had respected his wife’s wishes not to involve them with Poro. The applicant claims that he is not willing to accept his father’s position as he is Christian, and the Holy Bible forbids ritualistic practice.

Decision

Reasons for decision

The applicant’s stepchild made the following statement:I have known (the applicant) as a stepfather for over 8 years. He has been there for me when I needed him. He has fatherly advised me which has helped me become a better person and supported me and my interests, no matter what they may be. His advice is always in my mind because he wants me to become someone to take care of my siblings as I am the oldest. He is always smiling and does not resist to help us achieve anything. Being without a father at this time and age is worrying. I love him. After I graduated from school, he always encouraged me to further my education. I just finished a course [and] am getting ready for University education. He has become an important part of my life that I would rather not lose him as it would definitely take a toll on my mental health. His leaving Australia would mean that I will lose one of the people that have made me the person I am today. My younger sister would lose her father and the family I have become used to for over 8 years would be incomplete.DECISION OF THE DEPARTMENT The delegate was not satisfied that the applicant was of interest to the Poro Society, and therefore found that he did not meet the refugee or complementary protection criteria.FINDINGS AND REASONS OF THE TRIBUNALRelevant legal principles The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCEThe evidence taken into consideration In coming to a decision, the Tribunal has taken into consideration the evidence produced to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Liberia.Summary of evidence before the Department The applicant made claims in his application forms, supporting documents and at an interview with the Department on 27 July 2016. A summary of his evidence follows. The applicant stated that he was born on [date] in [Town 1], Liberia. He is from the Kpelle ethnic group and is a Christian. He said that he is from ‘[Town 1]’. He said that his father was a businessman and leader of the Poro Society. His family was financially secure and happy. He was one of [number] children. His father is deceased, but his mother and sister are residing in Liberia, as are [children], born [in years]. He also had a stepson who passed away. He is married in Australia and has a daughter born in [year], and [step-children]. He completed high school in October [year]. He studied [course] at [University 1] from [year] to [year]. While studying, he participated in the 2005 and 2011 elections for the opposition party. He was involved in campaigns and rallies. He was harassed by the government, but it was ‘not life threatening’. Before coming to Australia, he worked as [an Occupation 1] at [a workplace] with representative, [Mr A]. He travelled to Australia as part of his official duties upon an invitation from the Liberian community in [State 1]. While in Australia he met his wife[and] got married and later lodged a partner visa application. He and his wife have a daughter, and he has three stepchildren. [In] July 2015 he was informed by his sister that his father had passed away from illness. On 4 August 2015 he sent money to his sister for the funeral. He said that as he also had his visa application refused around this time, he planned to return to Liberia on 28 August 2015 for the funeral.